The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Fellowes moves for reconsideration of the Memorandum Opinion and Order*fn1 which denied Fellowes's motion for summary judgment of non-infringement of United States Patent No. 6,550,701 ("the '701 patent"), and seeks summary judgment of literal non-infringement and non-infringement under the doctrine of equivalents. In the alternative, Fellowes requests certification of the question of non-infringement to the Federal Circuit. Michilin opposes the motion. Because no disputed material facts exist concerning differing activations of the patented and accused devices, and Michilin offers no competing interpretation of the '701 patent claims, Fellowes's motion for summary judgment of literal non-infringement will be granted. Because Fellowes has not shown that the all-limitations rule prevents a finding of infringement under the doctrine of equivalents, the denial of Fellowes's motion for summary judgment of non-infringement based on the doctrine of equivalents will stand. Because the parties agree that if certification were to be appropriate it would best be pursued after a hearing is conducted under Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), a ruling on Fellowes's request to certify questions to the Federal Circuit will be deferred until after the scheduled Markman hearing.
The facts of this case are recited more fully in the March 7 Opinion. In short, the '701 patent claims as its invention a shredder with inports for paper and media storage discs and a paper touch switch and a disc touch switch to activate the shredding function. Fellowes's POWERSHRED PS70-2CD has inports for paper and media storage discs and a single optical switch to activate the shredding function. Michilin alleges that the POWERSHRED PS70-2CD shredder infringes the '701 patent under the doctrine of equivalents. Fellowes moved for summary judgment of literal non-infringement and non-infringement under the doctrine of equivalents based on the all-limitations rule and the disclosed-but-not-claimed rule. Michilin filed an opposition asserting material facts in dispute regarding infringement under the doctrine of equivalents. The March 7 Opinion ruled that Fellowes had not shown that summary judgment of non-infringement was warranted under the doctrine of equivalents based on either the all-limitations rule or the disclosed-but-not-claimed rule.
Fellowes now seeks reconsideration of the March 7 Opinion. Fellowes requests that summary judgment of literal non-infringement be granted as unopposed by Michilin. Fellowes also requests that the court reconsider the March 7 Opinion's analysis of the all-limitations rule, which relies on Eagle Comtronics, Inc. v. Arrow Communication Lababoratories, Inc., 305 F.3d 1303 (Fed. Cir. 2002), and that summary judgment of non-infringement under the doctrine of equivalents be granted. Fellowes cites primarily two cases as more analogous to the present case in support of its request: Dolly, Inc. v. Spalding & Evenflo Cos., Inc., 16 F.3d 394 (Fed. Cir. 1994) and Vehicular Technologies Corp. v. Titan Wheel International, Inc., 212 F.3d 1377 (Fed. Cir. 2000). Absent a grant of summary judgment of non-infringement, Fellowes requests in the alternative that questions of non-infringement based on the all-limitations rule and disclosed-but-not-claimed rule be certified to the Federal Circuit.
The claims of the '701 patent recite touch switches, and the specification indicates that the touch switches require any inserted material to actually touch the touch switch in order to activate the shredding. See '701 patent, col. 3:42-49; 4:52 -6:15. Fellowes's accused device, on the other hand, employs an optical switch, which requires no touching of the switch and activates the shredding by detecting an interruption of a light beam being transmitted from the transmitter to the receiver. (See Fellowes's Mem. in Supp. of Mot. for Summ. J. of Non-infringement at 15-16.)
Fellowes sought summary judgment of literal non-infringement of the '701 patent. (Fellowes's Mem. in Supp. Mot. to Reconsider ("Fellowes's Reconsider Mem.") at 3-4; Fellowes's Mem. in Supp. of Mot. for Summ. J. of Non-infringement at 15-19.) While Michilin's complaint does not allege specific theories of infringement (see Compl. ¶ 18 ("Fellowes has manufactured, sold, offered to sell and used and continues to manufacture, sell, offer to sell and use a shredder embodying the invention claimed in at least claims 1, 3 and 4 of the '701 patent.")), Michilin's opposition to Fellowes's summary judgment motion advanced Michilin's claim of infringement under only the doctrine of equivalents. (See Michilin's Opp'n to Fellowes's Mot. for Summ. J. of Non-infringement at 8 ("Michilin asserts infringement under the doctrine of equivalents . . . .").) Michilin's opposition did not dispute that the switch on the accused device was optical rather than touch. In addition, Michilin failed to refute in its opposition to Fellowes's motion to reconsider Fellowes's claimed entitlement to summary judgment on literal non-infringement. (See Fellowes's Reply in Supp. of Mot. to Reconsider at 2.) At the March 29, 2006 hearing, Michilin refused to concede the motion to reconsider, but made little, if any, effort to advance disputed material facts that would preclude summary judgment on literal non-infringement.
"For literal infringement, each limitation of the claim must be met by the accused device exactly, any deviation from the claim precluding a finding of infringement." Lantech, Inc. v. Keip Mach. Co., 32 F.3d 542, 547 (Fed. Cir. 1994). With no material facts in dispute about the literal difference in switch types and activations, and because Michilin offers no other interpretation of the claims of the '701 patent, Fellowes's motion for summary judgment of literal non-infringement will be granted.
II. INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS
Fellowes contends that the March 7 Opinion's reliance on Eagle Comtronics is misplaced because that case stands for only "the limited proposition that a claim having two separate and distinct elements can be infringed by a device that has two claimed features distinguishably joined together into a single integral component, but are nevertheless still separately identifiable." (Fellowes's Reconsider Mem. at 4.) Because Fellowes's accused device does not join two switches in a single housing, but rather has only a single switch, Fellowes argues that Eagle Comtronics is inapplicable. (Id. at 10-11.) The Federal Circuit summarized the issue in the case as "whether [the accused] one-piece collet assembly with a seal located along its periphery can be insubstantially different from a collet assembly comprised of a front cap, a rear insert body, and a seal located between the two, without violating the all-limitations rule." Eagle Comtronics, 305 F.3d at 1317.
In explaining its holding, the Eagle Comtronics court stated that "when separate claim limitations are combined into a single element of the accused device, a claim limitation is not necessarily vitiated, and the doctrine of equivalents may still apply if the differences are insubstantial." Id. The Federal Circuit emphasized that whether the "one-piece collet assembly is insubstantially different from the claimed collet assembly is a question of fact, the resolution of which requires a traditional infringement analysis."*fn2 Id. Eagles Comtronics does not limit its application to only accused devices that incorporate two claimed features distinguishably joined together into a single integral component, but ...